NEWSLETTER-2019-metin

168 NEWSLETTER 2019 for persons who did not respect a court-ordered interim measure 6 . In other words, starting from November 20, 2019, Article 398 will no longer be applicable and, thus, there will be a legal loophole for non- compliance in the CCP. When a party does not abide by a court decision, it is always pos- sible to seek assistance from execution officers who have the power to enforce court orders as a civil law remedy. If the execution officer, however, fails to honor a court order, a criminal action may be initiated on the grounds of neglecting official duty or misconduct under Article 257 of the Turkish Criminal Code. As to taking of evidence and production of documents, the court is entitled to make certain inferences on the actions of the non-complying party. In other words, if one of the parties fails to submit the evidence or documents so ordered by the court, then it shall be deemed as if the documents would have an adverse effect on the non-complying party. In addition to the above, as per Article 221 of the CCP, third par- ties are obliged to produce a court-ordered document, and therefore, if a third party fails to produce such document, then the court shall request a third party’s witness testimony concerning the document. If the third party also fails to testify, accordingly, then the court may impose a disciplinary fine on the non-complying third party. Conclusion Due to the consensual nature of international arbitration and the principle of party autonomy, parties to arbitrations have the freedom to determine the arbitration procedure to be applied to their dispute. If the parties fail to determine such agreement, the applicable pro- cedure will be determined as per the procedural laws of the seat of arbitration. The TIAL is the applicable law concerning international commercial arbitration where a dispute has a foreign element and the place of arbitration is determined to be in Turkey, or the parties opt for its application to their dispute. 6 Constitutional Court, E. 2018/1, K. 2018/83, 11.7.2018.